Smith v. Smith

• Decision Date: 27 February 1890
• Citation: 52 N.J.L. 207,19 A. 255
• Parties: SMITH v. SMITH et al.
• Court: New Jersey Supreme Court

19 A. 255

52 N.J.L. 207

SMITH

v. SMITH et al.

Court of Errors and Appeals of New Jersey.

Feb. 27, 1890.

(Syllabus by the Court.)

Error to supreme court.

The plaintiff claims as widow of Hezekiah B. Smith, deceased, late of the county of Burlington; the defendants H. B. Smith Machine Company are lessees; and the other defendants, devisees in fee, and trustees under the will, for establishing and conducting a school for apprentices and young mechanics. The lands in controversy are at Smithville, in Burlington county. The issues of fact were found in favor of the demandant, and exceptions in law are brought up by the writ of error.

Joseph H. Gaskill, Samuel H. Gray, and Cortlandt Parker, for plaintiffs in error. Mark R. Sooy and Barker Gummere, for defendant in error.

SCUDDER, J., (after stating the facts as above.) This case was tried by a struck jury, and at the trial there was a written challenge to the array, because one of the 48 jurymen selected by the judge was dead; another was a fireman, exempt by law; and a third, whose name was on the panel of 24 jurors struck for the trial, was not summoned. The challenge was overruled, and an exception taken. There was no objection to the jury until the trial was called. Had the attention of the court been directed to these particular cases before that time, other names might have been supplied, or any omission of duty on the part of the summoning officer corrected. There is no allegation that there was any design or collusion for the purpose of affecting the trial, or that the defendants were prejudiced, and the statute makes ample provision for the required number of jurymen by an award of tales to call others until the panel is filled for the trial. Patterson v. State, 48 N. J. Law, 381, 4 Atl. Rep. 449; King v. Hunt, 4 Barn. & Aid. 430. There was no error in the ruling of the court on this challenge.

The principal cause of error assigned relates to the marriage of the demandant and Hezekiah B. Smith. The proof of marriage was based on two propositions: An actual marriage at Charlestown, in the state of Massachusetts, whither the parties had gone for that purpose; and their future cohabitation and recognition in the state of Vermont, the domicile of both before and after the alleged marriage. As the issue was whether the demandant and Hezekiah B. Smith were ever lawfully joined in matrimony, the evidence was properly received on both parts of the case to show a valid marriage, if either or both were legal proof of marriage when the alleged marriage took place, or at their place of residence. It seems, however, that in this case the fact of marriage depends more strictly on the actual marriage which it is claimed was contracted in the state of Massachusetts, followed by cohabitation and reputation in Vermont, as corroborating evidence of such marriage, rather than on these consequences as independent proof of marriage in the state of Vermont. The demandant stands on the first contention, and must there stand, to make her proofs consistent; and it is not material that the following cohabitation and reputation would of themselves be independent proof of marriage, if there were no other. The case does not properly call for such adjudication, and, if it was so used at the trial, it was immaterial, if there was legal proof of an actual marriage, followed by long-continued cohabitation and reputation to sustain it.

After the lapse of many years, slight proof of an actual marriage, followed by long-continued living together as man and wife, is often the best and only evidence that can be obtained. The direct proof of an actual marriage depends on the testimony of the demandant herself, supported by evidence of admissions made, afterwards, by Hezekiah B. Smith that a marriage ceremony had been performed in Boston, but in one instance denying its legality. The demandant was a competent witness to testify against these defendants, for they are sued as devisees having title to the land under the will, and not as executors and legal representatives. Crimmins v. Crimmins, 43 N. J. Eq. 86, 10 Atl. Rep. 800; Hodge v. Coriell, 44 N. J. Law, 456, 46 N. J. Law, 854; Palmateer v. Tilton, 40 N. J. Eq. 555, 5 Atl. Rep. 105.

This testimony was found by the jury to be true, and they based their verdict upon it. Upon the exceptions taken, this court must determine whether the marriage was good in law, assuming the facts stated by her to be true. The story told by the demandant is interesting, and, in her present condition, pathetic. She was born near Woodstock, in the state of Vermont. Moved to that village, where she followed the occupation of a seamstress. In 1843, at that place, she became acquainted with Hezekiah B. Smith. He was then a young mechanic, of remarkable inventive talent. They were soon engaged to be married, but their marriage was delayed by his inability to provide a home, and afterwards by a desire to settle up his business, and go elsewhere. On April 25, 1846, he came to her father's house, while her parents were absent. Said he was ready to go' away to be married. Persuaded her to go with him. He left a letter behind on a table, explaining to her father the cause of their conduct,—that they were going away to seek a home and be married. On their way to Woodstock they drove to the house of her uncle Richardson, and there left the same message for her parents. They traveled on to Windsor, Vt., when she urged that they should be married. He had his trunk and tool-chest, and she had her trunk, when they arrived there on Saturday. On Sunday he went to get a clergyman, but returned, saying they could not be married without giving notice, and said: "We will go to Boston." While they were at the hotel at Windsor, her father and uncle came there in pursuit of them. Smith told them that they were going to Boston, and that he had no idea of anything but marrying her. They went to Concord the next morning. She remained there while he went to Boston to make arrangements for his business and marriage. He soon came for her. They stopped by the way at Nashua to see a cousin of his. Asked him and his wife to go on with them to Boston to see them married, which they declined to do, and then went to the Bunker Hill House, Charlestown. He told her by the way that they would be married there by Rev. Mr. Warren, and she accompanied him with that expectation. He went out. Returned soon with a man whom he introduced to her, saying: "This is the minister who is to marry us;" and said: "Mr. Warren, Miss English." She describes this man as small, beside Mr. Smith, about 35 years old, nicely dressed, with smooth face, and she supposed he was a clergyman. She thought he was what Mr. Smith represented him to be, He shook hands with her, told them to join their right hands, and then proceeded with the ceremony. He asked Mr. Smith if he would take her to be his lawful wedded wife. He assented. He asked her the same question, and she assented. He then pronounced them man and wife. After the ceremony Mr. Warren and Smith went out together. The latter returned alone. They had something to eat, went about the city, and took the night train for Manchester. When walking there with Smith, she was introduced by him as his wife to a Mr. White. Both wrote letters to her parents, telling them of their marriage. She was introduced to others by him, and they continued to live together as man and wife. She visited his relatives, and was visited by them. Boarded with them. Gave birth to four children, whom he acknowledged as his. He rented a house, paid all the family expenses, and in every way acted and spoke of her and her children as a husband and father should. This continued until 1865,...